Supreme Court resurrects Oklahoma woman's claim that sex-shaming landed her on death row

WASHINGTON (CN) — The Supreme Court agreed on Tuesday that an Oklahoma woman deserved review of whether unlawful gender stereotyping put her on death row.

In a per curiam order, the justices found that statements about the woman’s sex life and her apparent “failings as a mother and wife” could have been so prejudicial that the state violated the due process clause and rendered the trial fundamentally unfair.

The high court vacated a 10th Circuit Court of Appeals’ decision to deny the woman’s appeal, finding that, despite no federal law banning the introduction of irrelevant evidence — which the justices said they would review — the appellate court should have considered whether a jurist would not deem the trial unfair. The justices remanded the case to the 10th Circuit for review.

Justice Clarence Thomas, a George H. W. Bush appointee, and Justice Neil Gorsuch, a Donald Trump appointee, dissented and said the majority’s decision Tuesday wrongfully generalizes a “one-sentence aside” of Payne v. Tennessee, which held that the due process clause protects against unduly prejudicial evidence.

Thomas and Gorsuch also pushed against the majority’s description of the record, saying the state had “overwhelming evidence” that the woman had participated in her husband’s murder.

Brenda Andrew faces execution for the 2001 murder of her estranged husband, Robert Andrew. Despite a confession from her boyfriend, prosecutors put Andrew’s character as a mother and wife on trial to convince a jury to sentence her to death for a crime she maintains she didn’t commit over two decades later.

“By stripping Ms. Andrew of her humanity as a whole person, the state instead offered the jury an archetype of a ‘slut’ and depraved adulterer who dressed in ‘improper’ clothing, did not display feminine emotion, kept a ‘filthy’ home, and was a bad mother,” Andrew’s attorneys wrote in a petition before the court. “And the state explicitly told the jury that Ms. Andrew’s deviance from ‘the rest of us’ and failure to cry was a reason to condemn her to die.”

A retired federal judge said the Oklahoma County district attorney’s office weaponized gender bias to poison proceedings against a female defendant. Judge Mark Bennett urged the justices to review Andrew’s case to eradicate such prosecutorial tactics from American courtrooms.

Bennett — joined by a nonprofit organization, 17 law professors and domestic violence researchers and advocates — submitted research demonstrating how the prejudicial evidence in Andrew’s case tainted her trial, making it a referendum on her femininity and morality instead of her guilt.

“Any jury subjected to this drumbeat of sexualizing evidence would come to see Ms. Andrew not as one of their peers, entitled to fair and impartial treatment, but as a one-dimensional and callous seductress, undeserving of their compassion,” Bennett and his colleagues wrote in an amicus brief. “A robust catalogue of scholarly research confirms this fact, and makes clear that the flames of gender bias the prosecution fed throughout trial were so prejudicial as to have deprived Ms. Andrew of a fair trial.”

Robert was fatally shot while picking up the couple’s children at their home in 2001. Brenda was also shot in the arm during the incident.

Oklahoma said either Andrew or her boyfriend, James Pavatt, shot Robert and then staged her injury.

Prosecutors called Andrew’s former partners to testify about their past relationships and sexual activities. Oklahoma asked several witnesses to describe Andrew’s clothing and provide judgments on her modesty. Witnesses said Andrew wore leather outfits and short, tight dresses and described her clothing as provocative and improper. One witness called Andrew a “hoochie” because of her exposed cleavage.

“The state’s narrative culminated in Hawthorne-inspired public shaming when, in its guilt phase closing argument, the prosecutor plucked a pair of thong underwear from Ms. Andrew’s suitcase and, with a flourish, asked whether a ‘grieving widow’ would wear ‘this,’” Andrew’s attorney wrote. “In a final dehumanizing blow, the prosecutor dubbed Ms. Andrew a ‘slut puppy,’ leaving the slur hanging in the air shortly before the jury began deliberations.”

Oklahoma argued that prosecutors were forced to refute Andrew’s claims because she defended herself as a good mother. The state claims Andrew’s demeanor and sexual history were relevant to her ability to manipulate men.

Andrew challenged Oklahoma’s reliance on her sexual behavior, clothing and conduct. The Oklahoma Court of Criminal Appeals found some of the state’s evidence irrelevant but ruled that any error was harmless.

The 10th Circuit similarly ruled against Andrew’s appeal, finding that there was no clearly established federal law barring the admission of irrelevant, prejudicial evidence.

Andrew urged the justices to reverse, arguing that Oklahoma’s evidence rendered the trial fundamentally unfair, violating the due process clause of the 14th Amendment. Andrew said the appeals court didn’t consider all of the prejudicial evidence against her played into the sexist stereotyping at the heart of the state’s arguments.

“Allowing the state to obtain a capital conviction and death sentence by wielding dehumanizing sexist stereotypes in its arguments and in the introduction of wholly irrelevant evidence concerning the defendant’s sexual history, appearance, and demeanor is far outside the realm of reasonableness,” Andrew’s attorney wrote.

Oklahoma said its conviction was not wholly based on its presentation of Andrew’s character. The state cited control of Robert Andrew’s recent life insurance policy and someone cutting the brake lines on his car. Andrew skipped her husband’s funeral to go to Mexico with Pavatt and her children.

“Evidence indicated that Andrew hated her husband, and she made no secret of her desire to see him dead, stating as much to multiple individuals in the lead up to the murder,” Oklahoma wrote. “So strong was the sentiment that even the victim in this case, her own estranged husband, was convinced that she was seeking to take his life.”

The state urged the court to reject Andrew’s petition for review because her claims differed from those presented at the Oklahoma criminal court.

“Granting certiorari in Andrew’s case would be a useless exercise and place a strain upon this court’s precious resources,” Oklahoma wrote.

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